R. v. Alphonse

Parties

Procedural Posture

Criminal Second Degree Murder / Jury Trial; Evidence Closed; Pre Charge Rulings on Defences (air of Reality)

Legal Issues

1. 1 Whether the defences of provocation and self-defence have an air of reality and should be left to the jury
2. 2 Whether the facts could support reducing murder to manslaughter on provocation
3. 3 Whether the accused had a reasonable belief of threat justifying self-defence under s.34

Ratio Decidendi

The judge found no air of reality to provocation because being struck with a chair in the context of a consensual chair fight was foreseeable and not sufficient to deprive an ordinary person of self-control, so provocation was not left to the jury; conversely, there was an air of reality to self-defence because witness evidence that the knife was in plain view and the deceased's conduct could support a reasonable belief that the accused was being threatened, so self-defence was left to the jury.

Court Disposition

Provocation defence dismissed (no air of reality); Self-defence found to have an air of reality and will be left to the jury

Orders

• Judge to instruct the jury on self-defence in accordance with s.34 Criminal Code and applicable jurisprudence
• Provincial publication ban applied pursuant to s.648(1) Criminal Code until the jury retired to consider its verdict